The Washington PostDemocracy Dies in Darkness

Opinion The practical points of executive privilege

Former president Donald Trump during a rally in Des Moines on Oct. 9.
Former president Donald Trump during a rally in Des Moines on Oct. 9. (Rachel Mummey/Reuters)
Placeholder while article actions load

Saikrishna Prakash made a lawyerly case in his Oct. 31 Outlook essay, “Trump has a point: Executive privilege can apply to former presidents, too,” for former president Donald Trump’s assertion of executive privilege, but he underplayed one aspect and did not address practical ones.

Though acknowledged by courts, executive privilege is nowhere to be found in the Constitution or in any statute. It exists as a practice by deference, not law; a privilege, not a right, and hence an anomaly as a governance principle that should not command judicial support.

Mr. Prakash provided no boundaries, time or otherwise, for ex-presidents asserting the privilege, save for former president Richard M. Nixon claiming executive privilege for documents in 1977. Requiring the prior and the incumbent president to agree would vitiate the authority and power of the incumbent. An ex-president’s supposed privilege would have equal or greater rights than an incumbent president’s authority. Mr. Prakash provided no specific constitutional or statutory provision that authorizes such a derogation of presidential power. Moreover, under law and regulation, the incumbent president can classify or declassify any document. Limits on what an incumbent president can do for a self-declared privilege run contrary to that authority.

Any advice must be able to stand public scrutiny for accountability. Mr. Trump’s history of demanding nondisclosure agreements and his repeated rejection of calls to release information serve his personal interests, not the country’s. That cannot be a standard for public service.

Alexander Karagiannis,
Falls Church